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Second Appeal Brief
PA ID# 099-07875-00; City of Boynton Beach
PW ID# 7884 and 7889; Debris Removal
Conclusion: Pursuant to the Stafford Act § 423 and 44 C.F.R. § 206.206, the Applicant’s second appeal is untimely. Timeliness aside, the Applicant has not demonstrated that debris removal work performed on private roads is eligible for Public Assistance (PA) reimbursement pursuant to 44 C.F.R. §§ 206.223 and 206.224, and Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.
Following Hurricane Frances, FEMA drafted Project Worksheets (PWs) 7884 and 7889 to address debris removal throughout the City of Boynton Beach (City). During a review of the PWs, FEMA determined that the Applicant removed 7,337 cubic yards (CY) of debris and 16,766 CY of debris from private roads as documented in PW 7884 and PW 7889 respectively; however, at closeout, FEMA found that the Applicant was not legally responsible for removing debris from private roads. As such, FEMA reduced costs associated with the work. The Applicant appealed this determination, and in November 2006, FEMA Region IV issued a decision determining that the Applicant was not legally responsible for removing debris from private roads. Following a 2010 FEMA second appeal determination for the City of Winter Springs, the Applicant again appealed the eligibility of work performed to remove debris from private roads, and FEMA Region IV again denied it on the basis of legal responsibility. In its second appeal, submitted two years after the first appeal decision, the Applicant asserts that it is responsible for safeguarding the life and property of all of its citizens. As evidence, the Applicant cites to Florida Statute 252-38 which it says authorizes it to “take whatever prudent action necessary to ensure the health, safety, and welfare of the community.” In addition, the Applicant asserts that its solid waste ordinance provides legal responsibility for debris removal on private and public roads. The Applicant argues that the City ordinance combined with the State law establishes legal responsibility; thus, the debris removed from private roads is eligible for Public Assistance (PA) funding.
Authorities and Second Appeals
Stafford Act §§ 403(a)(3)(A), 407(a)(1), 423.
44 C.F.R. §§ 206.206, 206.223(a)(3), 206.224(a)-(b).
Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities.
Stafford Act § 423 and 44 C.F.R. § 206.206 provide statutory and regulatory timeframes for submitting appeals of FEMA determinations.
The Applicant and the Grantee were untimely when submitting the second appeal for PWs 7884 and 7889.
Pursuant to 44 C.F.R. § 206.223 and Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, an eligible applicant must be legally responsible for removing debris from private roads.
The Applicant did not sufficiently establish that its City ordinance endowed it with clear, legal responsibility to remove disaster-related debris from private roads.
Pursuant to 44 C.F.R. § 206.224, as clarified in Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, FEMA may reimburse costs associated with debris removal when it is necessary to eliminate an immediate threat to life or the debris is so widespread that public health and safety or the economic recovery of the community is threatened.
Disaster-Specific Guidance #8, Debris Removal from Roadways in Private or Gated Communities, provides that FEMA requires the state or local government to indemnify FEMA from a claim arising from such removal and obtain unconditional authorization to remove the debris from the proper.
The Applicant did not provide the required indemnification and hold harmless agreements for this project.